Constitutional Law E&Es - Powers

Example 1-G Tom was suspended from public school for refusing to wear the school uniform. The lower federal courts rejected Tom's claim that his right to express himself by the way he dresses is a protected form of speech under the First Amendment. How might individual Justices approach this question?

A Justice who subscribes to either textualism or specific practices originalism would probably reject Tom's claim since neither the text of the Constitution nor the original understanding of the First Amendment indicates that conduct of this type is protected speech. On the other hand, Justices who are either general-principles originalists or moderate nonoriginalists would seek to implement the general principle of freedom of expression embodied in the First Amendment. Yet even these Justices might not reach the same result. One such Justice might interpret freedom of expression by looking to history and tradition and on that basis reject the claimed right because custom and law have long restricted the way people may appear in public. A second Justice might look to precedent to see whether a similar right has been recognized in other contexts; this Justice might find a protected right by analogizing the wearing of clothes to wearing an armband or displaying a flag, both of which are recognized forms of expression under prior case law. A third Justice might adopt a philosophical view that focuses not on clothing as such but rather on the notion that people have the liberty to express themselves in any manner they choose, so long as they do not risk causing serious harm to others; this approach would also find that Tom's First Amendment rights were implicated.

Example 1-F Suppose that a court is presented with the question of whether the First Amendment's prohibition against laws "abridging the freedom of speech" applies to government censorship of social media. How might different judges approach this question?

A judge who adhered to specific practices originalism would conclude that the First Amendment does not protect such expression since it was unknown in 1791 and was not a form of speech that the First Amendment's proponents intended to shield from government interference. A general principles originalist, on the other hand, would not look to the specific types of speech or practices the Framers had in mind, but would seek to apply the general principle that the Framers sought to protect—i.e., the principle of freedom of expression. Because that concept is broad enough to embrace social media, a sophisticated originalist would find such communication protected by the First Amendment. In this example, a textualist would probably reach the same conclusion as a general-principles originalist. A textualist might reason that the Constitution protects "speech," that social media postings are a form of "speech," and that since the First Amendment makes no exception for speech on the Internet, such speech is therefore protected.

Example 7-B Suppose that a study has shown that the average American worker puts in four hours of overtime per week, often at the employer's insistence. One effect of this practice is to reduce the number of available jobs and to thus increase the nation's unemployment rate. To combat this practice, the President issues an executive order barring employers from forcing workers to put in any overtime. The executive order authorizes the Justice Department to enforce the order by obtaining a court injunction against any employer who violates the order. Is the executive order valid?

Assuming there is no federal statute imposing such a ban on employers, the President's action constitutes a clear exercise of lawmaking power. The President has in effect made a law governing overtime work. Had such a measure been enacted by Congress, the executive's Article II, § 3 duty to "take Care that the Laws be faithfully executed" would have fully justified the President's instructions to the Justice Department. In the absence of a congressional statute, however, the President has assumed the dual role of lawmaker and law enforcer, thereby violating separation of powers. One could analyze this problem in either textual or structural/functional terms. A textual argument would urge that by vesting "all" legislative power in the Congress, Article I precludes the exercise of the lawmaking power by the executive. A structural or functional approach would argue that the President has sought to aggrandize the executive branch by usurping power that should more appropriately be exercised by the legislature. One of the fundamental principles of separation of powers is that "[t]here can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates...." The Federalist No. 47, at 302 (Madison, quoting Montesquieu) (Clinton Rossiter ed., 1961).

Example 7-A Suppose that Congress required the President to recognize and establish diplomatic relations with a new foreign state such as those that emerged after the collapse of the Soviet Union. Congress's action might be attacked on separation of powers grounds using the textual argument that Article II, § 3, which states that the President "shall receive Ambassadors and other public Ministers," implicitly gives the President the authority to recognize foreign governments. If a court were to reject this textual separation of powers claim on the ground that Article II, § 3 does not expressly address the issue of recognition, how else might the President challenge Congress's action?

Congress's action might still be challenged by making the structural or functional separation of powers argument that the power to recognize foreign governments is indispensable to the President's ability to conduct foreign affairs, and that Congress has therefore encroached upon the President's domain and sought to aggrandize its own power by usurping authority that should be exercised by the executive alone.

Example 5-I Partly due to ignorance on their part, many people in the United States do not eat a balanced diet; as a consequence, they experience significantly increased health care costs. It has been estimated that for the country as a whole, the annual medical burden of malnutrition and obesity accounts for nearly 10 percent of total medical spending. As a result of having to provide medical care to these individuals, everyone's medical premiums have risen because those with unhealthy eating habits pay only a fraction of the medical costs associated with their behavior. Congress is considering several means of addressing this problem. First, individuals would be prohibited from bringing "junk food," as defined by statute, aboard any train, plane or boat traveling in interstate commerce. Second, any company that sells or otherwise provides food to its employees would be barred from selling or providing them with junk food if any of the food has traveled in interstate commerce. Third, every individual would be required to eat a federally mandated minimum amount of vegetables each day. Are these three provisions within Congress's power under the Commerce Clause?

First, the ban on bringing junk food aboard any train, plane, or boat traveling in interstate commerce would be valid as a regulation of the channels of interstate commerce. Second, the ban on selling or providing junk food to company employees might be justified under the Commerce and Necessary and Proper Clauses, at least as applied to food that has traveled in interstate commerce. Because Congress could entirely ban such foods from interstate commerce, reducing its consumption would be an indirect but necessary and proper means of lessening that flow. As to junk food that did not travel in interstate commerce but was instead grown, sold, and consumed locally, this still involves a class of economic or commercial activity that is subject to federal regulation under the principle of Wickard v. Filburn. Third, the requirement that individuals consume a federally prescribed minimum amount of vegetables each day would cross the line drawn in Sebelius between regulating commerce and compelling it. Indeed, Chief Justice Robert's opinion in Sebelius used "ordering everyone to buy vegetables" as an example of something Congress could not do under the Commerce Clause. National Federation of Independent Business v. Sebelius, supra, 567 U.S. at 554.

Example 7-F The Securities and Exchange Commission (SEC) has statutory authority to institute administrative enforcement proceedings against anyone accused of violating federal security laws. Typically, the SEC delegates that task to an administrative law judge (ALJ). The SEC staff appoints the agency's ALJs. Such appointments are continuing, career positions. An ALJ assigned to hear an enforcement action has the "authority to do all things necessary and appropriate" to ensure a "fair and orderly" adversarial proceeding. After a hearing ends, the ALJ issues an initial decision. The SEC can review that decision, but if it opts against review, it issues an order that the initial decision has become final. The initial decision is then "deemed the action of the SEC." Are the SEC's ALJs officers of the United States and therefore subject to the Appointments Clause, or are they mere employees of the agency?

Given that that the appointment as an ALJ is a "continuing, career appointment," and given that such ALJs wield significant authority over the enforcement of federal law, the position should be deemed to be that of an officer of the United States subject to the strictures of the Appointments Clause. See Lucia v. Securities and Exchange Commission, 138 S. Ct. 2044 (2018).

Example 5-S The Sports Protection Act (SPA) makes it unlawful for any state, not subject to a narrow grandfather clause, "to sponsor, operate, advertise, promote, license, or authorize a lottery, sweepstakes, or other betting, gambling, or wagering scheme based on competitive sporting events." New Jersey, which did not fall within the grandfather clause, nonetheless enacted a statute that did precisely what SPA prohibited, namely, New Jersey authorized gambling on competitive sporting events. The NCAA brought an action in federal court against the state and various state officials, seeking to enjoin the New Jersey law on the ground that it violated SPA. New Jersey defended its statute by arguing that SPA ran afoul of the "anticommandeering" principle. How should the district court rule on the state's defense?

If SPA directly regulated or prohibited sports gambling, the question would be whether Congress had acted pursuant to a valid power, say, the Commerce Clause, and, if so, whether the challenged state law conflicted with the federal enactment. See Chapter 6, infra ("The Supremacy Clause"). But SPA does not itself regulate or prohibit sports gambling. Rather, SPA simply forbids non-grandfathered states from, among other things, authorizing sports gambling. In other words, SPA does not regulate sports gambling; it regulates the states in their policy-making capacity. More specifically, SPA commandeers state legislatures by instructing them as to what they may not do in the context of sports gambling, thus violating the anticommandeering principle established in New York v. United States and Printz v. United States. See Murphy v. National Collegiate Athletic Association, 138 S. Ct. 1461 (2018) (so ruling on similar facts). The Murphy Court saw no distinction between ordering a state or local government to do something (as in New York and Printz) and ordering a state or local government not to do something (as in Murphy). Id. at 1478 (describing the distinction as "empty"). Of course, returning to our first point, if Congress had validly prohibited sports gambling throughout the United States, any state law authorizing such gambling would be preempted by the federal measure.

Example 7-G Following a scandal in which U.S. customs agents were found to have accepted bribes from drug smugglers, a federal statute created the office of customs prosecutor. The customs prosecutor is authorized to investigate the U.S. Customs Service and to bring criminal proceedings against any customs agent found to have accepted a bribe. The statute provides that the customs prosecutor is to be appointed by the attorney general. Once appointed, the customs prosecutor is to continue in office until the attorney general certifies that the investigation and all related prosecutions have been completed. The customs prosecutor may be removed from office by the attorney general but only for cause. Is the appointment provision valid?

If the customs prosecutor is a principal officer of the United States, the appointment provision is invalid since Article II, § 2 specifies that principal officers must be nominated by the President and confirmed by the Senate; no other appointment option is available. On the other hand, if the customs prosecutor is an inferior officer, Congress had the right to vest the appointment in the attorney general, as head of the Justice Department. The appointment would likewise be valid if the customs prosecutor were a mere employee since the Constitution does not specify the means of appointing employees or nonofficers. The duties of this position are far too significant to classify its holder as an employee. The question is thus whether the customs prosecutor is an officer, or an inferior officer. The power to investigate and prosecute crimes is considerable and involves a great deal of discretion. The customs prosecutor is appointed by the attorney general, a principal officer, but it is unclear whether the attorney general has authority to supervise the customs prosecutor's work. If such authority is lacking, it would appear that the customs prosecutor is not "inferior" to any executive branch officer. While the attorney general has the power to remove the customs prosecutor, this does not give the attorney general any real control over the office since removal may occur only for good cause. On the other hand, the customs prosecutor is charged with investigating and prosecuting only a narrow range of crimes. Moreover, the position is not permanent and must terminate as soon as the task for which it was created has been accomplished. While this is a close case, the Court might conclude that because of the temporary nature of the position, the customs prosecutor is an inferior rather than a principal officer, and that the method of appointment selected by Congress was therefore valid. See Morrison v. Olson, 487 U.S. 654 (1988) (holding that an independent counsel was an inferior officer); United States v. Nixon, 418 U.S. 683, 694 (1974) (intimating that a special prosecutor was an inferior officer).

Example 5-K Recall that in United States v. Lopez, the Court struck down the Gun-Free School Zones Act (GFSZA). Suppose that in response to that decision, Congress enacted the Gun-Free School Zones Tax Act (the Tax Act). The only difference between the Tax Act and the GFSZA is that instead of a criminal penalty, the Tax Act imposes a $10,000 tax on any person who possesses a firearm in a school zone. Suppose also that on facts similar to those presented in Lopez, an individual assessed with this tax challenges the constitutionality of the Tax Act. Assuming the Tax Act raises some revenue, is it a proper exercise of the power to tax? In other words, is the tax imposed penal or prohibitory and therefore a regulation rather than a true tax?

In a general sense, the Tax Act is quite similar to the Child Labor Tax Law. Both were adopted as attempted end runs around Supreme Court decisions striking down legislation under the Commerce Clause. Both also prescribe a particular course of conduct that must be followed to avoid the tax—don't bring guns into a school zone; don't employ children under certain specified conditions. The tax imposed by each, therefore, can be seen as a mechanism to enforce compliance with a regulatory scheme. The Tax Act, however, does not contain anything like the detailed regulations provided by the Child Labor Tax Law. Its complete focus is on a single act, namely, possession of a gun in a school zone. Perhaps this makes the Tax Act more like the National Firearms Act at issue in Sonzinsky, where the trigger of the law was also premised on a more general description of the taxable activity. Ultimately, whether this lack of detail is sufficient to distinguish the Tax Act from the Child Labor Tax Law depends on one's judgment as to the degree of deference due Congress. In the context of the commerce power, the Court has certainly suggested that total deference is no longer the appropriate standard. Yet how that judgment will be applied in the context of a tax case remains an open question. In short, the Tax Act is similar to the Child Labor Tax Law because it attempts to regulate local behavior through a tax and effects an end run around a Supreme Court decision, but dissimilar because it does not impose a "detailed" regulatory scheme with which one must comply to avoid the tax. The Tax Act also invites comparison with the tax struck down in Constantine. There, imposition of the tax was triggered by the taxpayer's criminal activity. Yet under the Tax Act, although possession of a firearm in a school zone may be criminal under state law, nothing in the federal act limits its application to possessions that are independently criminal. On the other hand, the size of the tax (like the tax in Constantine) is at least indicative of an intent to penalize rather than to generate revenue, and if one couples that with the fact that the tax is being imposed as an alternative to the criminal sanction struck down in Lopez, a reasonable case for application of Constantine might be made. Yet the Court's recent acknowledgment in Sebelius that the regulatory motive or effect of a revenue-raising measure usually plays little role in the analysis suggests that Constantine is unlikely to be controlling in this case.

Example 5-G Suppose that in the wake of Lopez, Congress amended the Gun-Free School Zones Act to make it a federal crime to "transfer or possess a firearm within a distance of 1,000 feet from the grounds of a public, parochial or private school." Louis, who was caught carrying a handgun while walking across the street from a public high school, has been criminally charged under the act. Can the act constitutionally be applied to him?

In its amended form, the act now reaches both economic and noneconomic activity, for while the mere possession of a gun may be noneconomic in nature, the transfer of a firearm certainly qualifies as economic and commercial activity. It is no doubt rational to conclude that the class of regulated activity, in the aggregate, exerts a substantial economic effect on interstate commerce, for many if not most of the firearms in question will have come from or may be destined for other states. Congress is therefore free to include within that class a subclass of noneconomic activity—i.e., mere gun possession. While there are limits on how far Congress may go in terms of including a subclass of noneconomic activity within a larger regulated class, the Court has insisted merely that there be a rational basis for doing so. Here, it is rational to conclude that enforcing a limitation on the transfer of weapons near schools will be enhanced by also prohibiting the possession of such weapons, since possession is much easier to detect than a transfer, which takes only seconds to accomplish.

Example 1-J A bill has been introduced in Congress to require all children who attend school on U.S. military bases to recite the Lord's Prayer at the start of each school day. Suppose that Congress passes and the President signs the bill requiring schools on military bases to begin each day with a recitation of the Lord's Prayer. The parents of several children sue the secretary of defense in federal district court to enjoin implementation of the law. The court, after finding that the statute is unconstitutional under the Supreme Court's interpretation of the Establishment Clause, issues an injunction barring the secretary from carrying out the law. May the secretary ignore the judgment, or may the President order the secretary not to comply with it on the good-faith belief that the law is constitutional?

Neither of these options would be constitutional. While the executive branch is free to disagree with the court's reading of the Establishment Clause, the court's judgment is nevertheless binding on the parties to the case, including the secretary of defense. And, though the President was not a party to the suit, the President may not act to thwart the implementation of a federal court judgment. For the secretary or the President to do so would violate separation of powers by undermining the judiciary's Article III authority to decide cases and controversies. If the executive branch is displeased with the decision, it may appeal the ruling. However, unless the Court of Appeals or the Supreme Court reverses the trial court's ruling, the executive branch must honor the trial court's judgment.

Example 5-T The federal Drivers' Privacy Protection Act of 1994 (DPPA), which we looked at earlier in Example 5-B, regulates the disclosure of personal information contained in the records of state motor vehicle departments. The DPPA prohibits states from releasing such information without a driver's consent unless the disclosure falls within one of the act's exceptions. A state agency that repeatedly violates the DPPA is subject to a civil penalty imposed by the United States Attorney General of up to $5,000 per day for each day of substantial noncompliance. The DPPA also regulates the disclosure of such information by private parties who receive it from the state under one of the act's exceptions. Private actors who violate the DPPA are subject to criminal fines and may be sued civilly by the driver to whom the information pertains. We saw earlier that the DPPA falls within the scope of Congress's commerce power. Does the act violate the constitutionally enforceable principle of federalism?

No. As in Garcia, the DPPA regulates the activities of the states themselves, as owners of the databases in question. Like the FLSA hour and wage provisions upheld in Garcia, the DPPA is a law of general applicability, for it regulates all suppliers to the market for motor vehicle information, including private parties who obtain this information from the states. And, in contrast to New York v. United States, the act does not force the states to enact or implement a federal regulatory policy. Unlike Printz, it does not commandeer the states by requiring them to enforce those parts of the act that regulate private parties. Instead, the private-party provisions are enforced either through criminal actions brought by the United States or through civil suits filed by those drivers whose privacy has been violated. See Reno v. Condon, 528 U.S. 141, 149 (2000) (holding unanimously that the DPPA does not violate "the principles of federalism contained in the Tenth Amendment").

Example 7-C Example 5-O addressed the question of whether a certain group of treaties—the Vienna Convention on Consular Relations, the Optional Protocol to that convention, and the United Nations Charter—were "self-executing," thus making a judgment of the International Court of Justice (ICJ) arising out of the Vienna Convention enforceable as a matter of domestic law in the United States. The Supreme Court held that these treaties were not self-executing. Hence, the ICJ judgment, which pertained to 51 Mexican nationals convicted and sentenced under state law, was not enforceable in the absence of implementing legislation. Suppose, however, that the President issued the following order pertaining to the judgment of the ICJ: I have determined, pursuant to the authority vested in me as President by the Constitution and the laws of the United States of America, that the United States will discharge its international obligations under the decision of the International Court of Justice in [Avena], by having State courts give effect to the decision in accordance with general principles of comity in cases filed by the 51 Mexican nationals addressed in that decision. In short, the President's action appears to implement the treaties by declaring their enforceability within the several states. Does the President have the power to do so?

No. The order is a form of lawmaking, even more clearly so than President Truman's action in Youngstown. By making an unenforceable treaty domestically enforceable, the order transforms that which is not law, namely, a non-self-executing treaty with no domestic enforcement mechanism, into a legal principle enforceable against the states as the supreme law of the land. So held the Supreme Court in Medellín v. Texas, 552 U.S. 491, 525-530 (2008). As the Court explained, "Once a treaty is ratified without provisions clearly according it domestic effect,...whether the treaty will ever have such effect is governed by the fundamental constitutional principle that '[t]he power to make the necessary laws is in Congress; the power to execute in the President.' " Id. at 526 (quoting Hamdan v. Rumsfeld, 548 U.S. 557, 591 (2006)). And drawing upon Youngstown, the Medellín Court observed, "When the President asserts the power to 'enforce' a non-self-executing treaty by unilaterally creating domestic law, he acts in conflict with the implicit understanding of the ratifying Senate. His assertion of authority, insofar as it is based on the pertinent non-self-executing treaties, is therefore within Justice Jackson's third category, not the first or even the second." 552 U.S. at 527.

Example 1-H A court is asked to determine whether the Due Process Clause of the Fourteenth Amendment bars a state from criminalizing private sexual conduct between consenting homosexual adults. In previous cases the Supreme Court recognized that one of the liberties protected by the Due Process Clause is a privacy right to make certain personal decisions involving sex and procreation without interference from the government. The level at which this privacy right is articulated will determine whether or not it covers the case before the court.

One judge might phrase the constitutional privacy protection narrowly as encompassing only "a fundamental individual right to decide whether or not to beget or bear a child"; under this formulation, the basic principles underlying the Due Process Clause would not protect relations between two homosexuals. Another judge, however, might articulate the right or privacy at a more general level of abstraction, as involving "the fundamental interest of all individuals...in controlling the nature of their intimate associations with others"; under the latter formulation, the right of privacy would apply to the case before the court. Compare Bowers v. Hardwick, 478 U.S. 186 (1986) (upholding criminal ban on homosexual sodomy) with Lawrence v. Texas, 539 U.S. 558 (2003) (reversing Bowers).

Example 7-U May the President enter into an executive agreement with France to conduct joint naval exercises in the Pacific or to designate the location of a U.S. consulate in France?

Since Article II, § 2 designates the President as "Commander in Chief of the Army and Navy," she possesses the independent power to arrange for naval exercises. The President is accordingly free to exercise this power through an executive agreement rather than through a treaty that would give the Senate the ability to block her action. The President has neither usurped the Senate's authority nor aggrandized the executive sphere.

Example 5-H (this is basically asking you to analyze US v. Morrison) The Violence Against Women Act (VAWA) creates a federal cause of action against any person who commits a crime of violence motivated by the gender of the victim. Included within this category are such crimes as rape and spousal abuse. In essence, VAWA gives the victim of such a crime a federal civil rights cause of action against the perpetrator. The act was passed pursuant to the Commerce Clause on findings that violence against women imposes severe and substantial economic costs to society including, but not limited to, costs incurred from hospitalization, rehabilitation, and lost productivity. The Senate report accompanying the act specifically found: "Gender-based crimes and fear of gender-based crimes restricts movement, reduces employment opportunities, increases health expenditures, and reduces consumer spending, all of which affect interstate commerce and the national economy." Is VAWA constitutional as an exercise of the commerce power under Lopez and Gonzales?

Since VAWA is not a regulation of either the channels or the instrumentalities of interstate commerce, the specific question is whether gender-based violence, as defined by the act, substantially affects interstate commerce. But before answering that question we must first determine if gender-based violence is properly characterized as economic activity or if its regulation is part of a more comprehensive regulatory scheme directed at economic activity. Quite likely the answer to both preliminary inquiries is no. Gender-based violence is not commonly understood as economic activity. Nor would gender-based violence satisfy the Gonzales Court's broader definition of economic activity as including the "production, distribution, and consumption of commodities." 545 U.S. at 18. It also does not seem that this regulation is part of any larger economic regulatory scheme. Rather, it is quite simply a civil remedy directed at a particular type of reprehensible but noneconomic behavior, and as such is similar to the gun possession prohibition at issue in Lopez. If the "economic activity" element of Lopez is a constitutional prerequisite to the exercise of the commerce power, VAWA does not represent an appropriate exercise of that power. If, on the other hand, "economic activity" is merely one factor to consider in the application of the "substantially affects" test, then we must proceed to examine the sufficiency of the relationship between gender-based violence and interstate commerce, albeit with the recognition that the activity being regulated does not fall within the sphere of activities generally thought to come within the ambit of the commerce power. Does gender-based violence substantially affect interstate commerce? One can certainly construct an argument that it does. Given the statistical prevalence of such violence (millions of such crimes are reported each year), there can be little doubt that, collectively, gender-based violence generates enormous economic costs to society, and at some point these costs are reflected in the interstate market in goods and services. The quoted findings by Congress would seem to be at least rational in this regard. Moreover, the connection with interstate commerce under VAWA is at least as substantial as the connection upheld by the Court in Wickard v. Filburn, supra, where consumption of wheat on farms was deemed sufficiently related to interstate commerce to trigger the commerce power. (Wickard is the case on which Example 5-D is based.) But Lopez strongly suggests that the economic consequences of this "noneconomic" behavior are too tenuous to establish a "substantial" link with interstate commerce. First, the fact that the regulated activity is noneconomic weighs heavily against validation of the act under the "substantially affects" test. Next, aside from the noneconomic nature of the regulated activity, to uphold VAWA, one arguably "would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States." Lopez, 514 U.S. at 567.

Example 5-B In 1994 Congress enacted the Drivers' Privacy Protection Act (DPPA). The DPPA regulates the disclosure and resale of personal information contained in the records of state motor vehicle departments (DMVs). Congress adopted the measure after finding that many states were selling this information to individuals and businesses who then used it to contact drivers for marketing purposes. The DPPA prohibits DMVs from disclosing this information without a driver's consent unless the disclosure falls within one of the act's enumerated exceptions. Those who receive information from a DMV pursuant to one of the statutory exceptions are likewise subject to strict regulation concerning their resale or redisclosure of the information. Is the DPPA a proper exercise of Congress's commerce power?

The DPPA might be justified under two different aspects of the commerce power. See § 5.3. First, the act might be viewed as a valid regulation of the channels of interstate commerce to the extent that it prohibits a particular good or thing—i.e., state-collected information about drivers—from being sold or released into the stream of interstate commerce (except under limited conditions). Yet while such information is an article of commerce if used for commercial purposes, the DPPA prohibits all releases of such information, not just those releases that are destined for interstate commerce. In theory, at least, a DMV might release information about a particular driver to someone intending to use it exclusively in that state. Alternatively, the DPPA might be defended on the ground that it regulates an economic activity—the sale of state-collected drivers' information—that is substantially related to or substantially affects interstate commerce. Under this approach, Congress may use the Necessary and Proper Clause to regulate the entire class of activity, even though not all of the information sold or disclosed by a DMV will necessarily find its way into interstate commerce. See Reno v. Condon, 528 U.S. 141 (2000) (upholding the DPPA as being a valid regulation of the channels or stream of interstate commerce without discussing whether it might also be sustained under the Necessary and Proper Clause). See also Pierce County v. Guillen, 537 U.S. 129 (2003) (federally created discovery privilege for information compiled and collected by state agencies participating in a federal highway safety program represents permissible exercise of the commerce power).

Example 5-D The Produce Marketing Act (PMA) is a federal statute that regulates the "marketing" of farm produce throughout the United States. Marketing is defined to include the selling of produce grown on the farm as well as the consumption of produce before it leaves the farm. The act limits the amount of produce that may be grown on a farm regardless of whether the produce is sold or is instead consumed there. Filbert owns a small dairy farm in Alabama. Each year he grows a winter crop of wheat, some of which he sells and some of which he keeps for his own consumption on the farm. Under the act, Filbert is permitted to sow no more than 11 acres of wheat; in violation of the act, however, he sowed 20 acres of wheat. He intends to keep the entire excess for consumption on the farm. Nonetheless, under the act, he must pay a substantial penalty for having grown the excess wheat. Under the commerce power, may Congress regulate the production and consumption of wheat on Filbert's farm?

The PMA is not a regulation of interstate commerce. Farming, like manufacturing, is not itself commerce; rather, farming is production, an activity that is at best antecedent to commerce. Nor is the activity in any fashion "interstate." However, growing wheat even if exclusively for home consumption might still be fairly characterized as involving "economic" activity, for it does involve the production and use of a form of wealth. Moreover, as was true with strip mining, farming does substantially affect interstate commerce, and despite the relatively limited farming engaged in by Filbert, Filbert is a member of a group whose activities as a class substantially affect interstate commerce. Under the class of activities rationale or so-called aggregation principle, Congress could rationally conclude that the collective consumption of "excess" wheat on farms has a substantial impact on the interstate market for wheat; Filbert's small contribution to this impact is enough to bring his activity within the regulated whole. If a large number of farmers grow excess wheat and consume that wheat on the farm, they will deliver their entire authorized allotment of wheat to the market (since they won't need to save any), thus potentially glutting the market and driving prices down. Similarly, farmers who store excess wheat will have no need to resort to the market for the purchase of wheat, again driving the prices down. See Wickard v. Filburn, 317 U.S. 111 (1942) (applying a similar analysis under similar facts).

Example 7-Q When the United States formally recognized Israel in 1948, the statement of recognition signed by President Truman did not recognize Israeli sovereignty over Jerusalem, for various actors have sought to assert sovereignty over the city including Israel, Jordan, and the Palestinians. Since that time, no president has officially acknowledged any country's sovereignty over Jerusalem. This position is reflected in the State Department's passport policy, which provides that U.S. citizens born in Jerusalem must list their place of birth as being "Jerusalem" rather than "Israel." In 2002, Congress passed an act entitled "United States Policy with Respect to Jerusalem as the Capital of Israel." Section 214(d) of that act allows U.S. citizens born in Jerusalem to list "Israel" as their place of birth on their U.S. passport. Menachem, a U.S. citizen who was born in Jerusalem, asked the State Department to designate "Israel" as his place of birth on his U.S. passport. After the Department refused and said that it would list only "Jerusalem," he brought suit against the Secretary of State in federal court to enforce § 214(d). The Secretary has objected that the statute unconstitutionally infringes on the Executive's constitutionally assigned functions. How should the court rule and why?

The President possesses the exclusive power to recognize or decline to recognize a foreign state and its territorial bounds. Section 214(d) requires the President, through the Secretary of State, to identify citizens born in Jerusalem, and who so request, as being born in Israel. This directly contradicts the longstanding executive branch policy of neutrality toward Jerusalem. By compelling the President to state a recognition position inconsistent with his own, Congress is in effect overriding the President's recognition determination, thereby exercising the recognition power itself. If Congress, acting unilaterally, cannot pass a law that effects formal recognition, neither may it force the President to contradict or override his own earlier recognition statement. Though § 214(d) is not itself a formal act of recognition, it is nonetheless a mandate that the Executive contradict its prior recognition determination in an official document issued by the Secretary of State. Section 214(d) is unconstitutional, for Congress is seeking to aggrandize its powers at the expense of another branch by exercising an exclusive executive function. See Zivotofsky v. Kerry, 135 S. Ct. 2076 (2015). Earlier, in Zivotofsky v. Clinton, 566 U.S. 189 (2012), the Court held that this case did not present a political question. See § 3.8.

Example 7-P On March 1, at the request of the prime minister of France, the President of the United States sent armed forces to a French island in the Pacific that was under attack by Cuban military forces. The President gave Congress no advance warning of his decision to employ U.S. troops. The President later defended the decision on the ground that an 1882 treaty between the United States and France bound each nation to assist the other in repelling an attack upon its territory or possessions. Was the President's action constitutional?

The President's unilateral decision to initiate hostilities with Cuban military forces in the Pacific would appear to have usurped Congress's authority to decide whether or not the United States should engage in war. Even if the Cuban attack on the French island was sudden and unexpected, it did not constitute a sudden attack on the United States, its territories, or armed forces. The situation therefore does not fall within the emergency exception contemplated by the Founders and recognized by the Court in The Prize Cases. The President's reliance on the treaty with France is misplaced. If a treaty purported to give the President the authority unilaterally to commit the United States to war, the treaty would be unconstitutional. Article I, § 8, cl. 11 assigns the power to declare war to Congress—i.e., to the House and the Senate. A treaty confirmed by the Senate alone cannot take the place of a congressional declaration of war. Many U.S. mutual defense treaties respect this fact. For example, the Southeast Asia Collective Defense Treaty, September 8, 1954, Art. 4, 6 U.S.T. 81, 83, committed the United States to respond to an attack upon one of the signatories "in accordance with its constitutional processes." Under the War Powers Resolution, the President was required to notify Congress by March 3 that he had sent U.S. troops into hostilities. Moreover, whether or not he gave such notice, the 60-day clock for withdrawal began to run on that date. The President, therefore, had to remove the troops by May 2, unless "unavoidable military necessity" required an extra 30 days to effect a safe withdrawal, in which case U.S. armed forces would have had to be removed within 90 days—i.e., by June 1—unless Congress in the interim had authorized the President's action or extended the period during which troops could remain there.

Example 7-E Suppose that a federal statute authorizes the Interstate Commerce Commission (ICC), in the interest of safety, to issue regulations restricting the use of billboards along interstate highways. According to the statute, Congress may by concurrent resolution disapprove any such regulations. A concurrent resolution requires the approval of the House and Senate but does not need to be approved by the President. Pursuant to this statute, Congress adopts a concurrent resolution blocking an ICC regulation that would have banned all billboards along Interstate Highway 80. Is the concurrent resolution valid under the principles announced in Chadha?

The concurrent resolution is unconstitutional. It involves legislative action since its purpose and effect are to alter the rights and duties of persons outside the legislative branch, including advertisers and ICC officials. Bicameralism does not pose a problem. In contrast to the one-House veto struck down in Chadha, the concurrent resolution involves a two-House legislative veto since it had to be approved by both the House and the Senate. Presentment, however, was not met because a concurrent resolution is not submitted for approval to the President.

Example 7-Y Paula has worked as a doctor for the U.S. Veterans Administration (VA) since 1985. In 1995 she learned that throughout this period, the women's restrooms at the VA's District of Columbia facility where she works were under secret observation by supervisors using one-way mirrors. Assume that in 1991, Congress adopted the Federal Employees Privacy Act (FEPA), which requires all federal facilities to respect the privacy rights of employees. Though FEPA did not specify that restroom surveillance falls within the scope of the act, in 1993 the U.S. Court of Appeals for the D.C. Circuit concluded that FEPA prohibits such activity. In 1995 Paula sued three VA supervisors, alleging that they had violated her privacy rights under the Constitution and under FEPA. She sought an injunction against further surveillance of the women's restrooms, and damages. The trial court found that the defendants violated Paula's privacy rights under the Constitution and under FEPA. Will the doctrine of qualified immunity bar Paula from obtaining injunctive relief and damages against the defendants?

The doctrine of qualified immunity has no bearing on claims for injunctive relief; the court may therefore enjoin the defendants from continuing to engage in such activity. However, the doctrine of qualified immunity will shield the defendants from damages liability if a reasonable person in their shoes would not have known that the conduct was illegal at the time it was undertaken. Once the U.S. Court of Appeals for the D.C. Circuit ruled in 1993 that FEPA prohibits restroom surveillance, some courts would agree that a reasonable person should have known that such conduct was illegal, in which case Paula could collect damages for the period after 1993. However, this might not be enough if there were still disagreement among the federal circuits, in which case only a ruling from the U.S. Supreme Court would meet the clearly-established standard. See § 4.2.6. For the years before 1993, defendants' ability to invoke qualified immunity will hinge on how clear the law of privacy was at the time. Since the Constitution does not specifically identify a right of privacy and since FEPA was not specific on this point either, Paula will be able to recover damages for the pre-1993 period only if case law had clearly established that government workers have a constitutional right to be free of restroom surveillance. Had other federal Courts of Appeals ruled on this question, and if so, were they all in agreement or was there at least a strong consensus? If the law on this point was not clearly established until later, Paula will be unable to collect damages for the years between 1985 and 1993.

Example 1-I A bill has been introduced in Congress to require all children who attend school on U.S. military bases to recite the Lord's Prayer at the start of each school day. Suppose that two years ago, the Supreme Court invalidated a state law requiring school children to recite the same prayer at the beginning of each school day, on the ground that it violated the First Amendment Establishment Clause. Are members of Congress required to vote against this bill because of the Supreme Court's ruling? If the bill passes Congress, would the President be obligated to veto the measure?

The members of Congress and the President are not required to adhere to the Supreme Court's interpretation of the Constitution when exercising functions over which the Constitution grants them complete discretion. Both a member's power to vote for or against a pending bill and the President's power to veto a bill are discretionary and not subject to judicial review. Therefore, if members of Congress and the President believe the statutory prayer requirement does not violate the Establishment Clause, they are free to support the bill regardless of the Court's view on this subject. Indeed, members of Congress and the President may support or reject the bill even if they have no opinion on the potential applicability of the Establishment Clause. Like Jefferson's exercise of the pardon power, their opinion merely operates as a potential motivating factor in their exercise of discretion. Of course, in reaching their decision, members of Congress and the President may well take the Supreme Court's opinion into account, just as they might consider other influential views on the bill's constitutionality. They might also assess the likelihood that the Court would reject its earlier decision. Yet in the final analysis the Court's interpretation is not binding on Congress or the President in their exercise of constitutionally vested discretion.

Example 5-C The Federal Surface Mining Act (FSMA) regulates the practice of "strip mining," a technique through which the surface of land is stripped away to extract minerals resting below the surface. The FSMA limits the circumstances under which strip mining can be used, and requires that all strip mines be returned to their original contour once a mining operation is complete. In adopting this legislation, Congress found that strip mining creates serious environmental harm by causing erosion and landslides, by polluting rivers, by destroying wildlife habitats, and by counteracting government efforts to preserve soil, water, and other natural resources. Does the regulation of strip mining come within the commerce power? Does it matter that the FSMA regulates land use, an area of law typically left to the states?

The practice of strip mining is not itself interstate commerce. Strip mining is a local economic activity much like farming or manufacturing. Yet, although strip mining is not itself interstate commerce, the practice of strip mining may substantially affect interstate commerce. Certainly this is true if the assertions made by the proponents of the FSMA have any basis in fact. The cited harms could affect interstate commerce by imposing substantial economic costs on the affected communities, which in turn could have a dislocating impact on interstate commerce. Similarly, several of the perceived negative impacts are of a type likely to have an interstate spillover (e.g., pollution of rivers, destruction of wildlife habitats, and harm to natural resources), all of which could be rationally described as substantially affecting interstate commerce. If the practice of strip mining does substantially affect interstate commerce, it makes no difference that the FSMA regulates land use. Unless the Court were to return to an enclave theory, the fact that land-use regulation is typically within the province of the states does not limit the scope of the commerce power. See Hodel v. Virginia Surface Mining & Reclamation Association, Inc., 452 U.S. 264 (1981).

Example 5-M Congress, under Title X of the Public Health Service Act, created a program that provides grants to nonprofit health organizations to assist them in establishing and operating programs that offer family planning services and counseling to women. However, the Act prohibits Title X federal funds from being "used in programs where abortion is a method of family planning." To enforce this provision, federal regulations require that any recipient of Title X funds agree not to provide abortion counseling or services to women in any of the recipient's offices or programs, including those that may not receive Title X funding. Does this prohibition violate the unconstitutional conditions doctrine?

The provision of abortion counseling is a protected First Amendment right. The restriction that the government has attached to the receipt of Title X grants violates the unconstitutional conditions doctrine for it has placed "a condition on the recipient of the subsidy rather than on a particular program or service, thus effectively prohibiting the recipient from engaging in the protected conduct outside the scope of the...funded program." Agency for International Development v. Alliance for Open Society International, Inc., 570 U.S. 205, 219 (2013). If the government had instead merely required that a grant recipient's abortion counseling or services be "physically and financially separate" from its Title X projects, the restriction would have been upheld since it would not reach beyond the contours of the government-supported program. Compare Rust v. Sullivan, 500 U.S. 173 (1991) (upholding federal Title X program of the latter type) with Agency for International Development, supra (invalidating 2003 United States Leadership Act program that placed restrictions on all of a grant recipient's activities and distinguishing it from the program upheld in Rust).

Example 5-L The Aid to Families Act (AFA) is a federal statute that provides food stamps to families with a demonstrated need for welfare assistance. Under the AFA as originally enacted, a single mother with demonstrated need and one dependent child was entitled to a monthly allotment of $250 in food stamps. An incremental increase of $50 in food stamps was provided for each additional child. As part of a welfare reform package, however, Congress amended the AFA to provide that any single mother receiving food stamps under the act who has two or more dependent children and who bears an additional child will, instead of receiving an increase in benefits, lose half of the AFA benefits for which she was previously eligible. This means that a single mother of two would have her $300 monthly allotment reduced to $150 on the birth of a third child. Can this measure be validated as an exercise of the spending power?

The provision of food stamps certainly involves an expenditure of federal money, and Congress could reasonably conclude that providing food stamps to needy families advances the general welfare of the nation. The amendment, however, may well be coercive and therefore valid only if it comes within the regulatory powers of Congress. Because food stamps are distributed on the basis of need, it would seem that this drastic cut in benefits, both in design and operation, coerces indigent single mothers into compliance with what can be fairly characterized as a federal regulation of family size and family living arrangements. In essence, the "power of choice" to determine both the size of her family and which of her children will live with her as dependents, is taken from the single mother just as the "power of choice" was taken from the farmers who were financially coerced into compliance with the congressional crop reduction plan in Butler. Either you comply with the federal plan or you will be subjected to severe economic consequences. (Consider whether the coercive spending label would attach had the AFA amendment merely provided that birth of an additional child would generate no increase in the family's food stamp allotment.) Assuming the AFA amendment is coercive, can it be validated under the Commerce Clause? In other words, could Congress pursuant to the commerce power regulate the size of "welfare" families? Probably not. Bearing children, although fraught with economic ramifications, is not commonly understood as economic activity. Given United States v. Lopez and United States v. Morrison, this in itself may preclude reliance on the commerce power. But even if such noneconomic activity can be regulated under the commerce power, given the further reasoning in Lopez, the government would face a difficult task in establishing that welfare family size "substantially affects" interstate commerce. Presumably the government's argument would be premised on a causal chain that begins with welfare family size and ends with interstate commerce: Increased family size leads to a lack of discipline, which leads to poor education, which leads to unemployment and economic dislocation, which may lead to crime, which affects local businesses, which ultimately affects interstate businesses, etc., etc. Yet it was precisely this type of "inference piled upon inference" that the Court rejected in Lopez. Thus despite the demise of the enclave theory, United States v. Butler when coupled with Lopez and Morrison may, under limited circumstances, provide an effective basis for challenging the constitutionality of purported spending measures. Note that this hypothetical provision may also violate principles of substantive due process because of its infringement on a mother's liberty interests in bearing children and in her family living arrangements. See Constitutional Law: Individual Rights, supra, § 2.5.2.

Example 5-F The Age Discrimination in Employment Act (ADEA) prohibits covered employers from discriminating against their employees on the basis of age. The act defines "employer" as "a person engaged in an industry affecting interstate commerce who has 20 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year." The Best Seller is a family-owned bookstore located in central Texas. Its primary business is the sale of current titles, especially those on the New York Times bestseller list. The store does a large volume of business, and has employed over 20 people on each working day for the past several years. A recently dismissed employee of the Best Seller has filed a claim against the company under the ADEA. Can the ADEA be constitutionally applied to the employment practices of the Best Seller?

The sale of current titles surely involves books that have recently moved in interstate commerce, as well as orders that have been placed through interstate channels. Given these facts, it would seem that the Best Seller is engaged in an industry "affecting interstate commerce." The statutory jurisdictional nexus is, therefore, satisfied. In addition, given these facts, one could say that the business of the Best Seller affects interstate commerce, and that when viewed collectively with the activities of other similar businesses, the aggregate effect is substantial. But this does not answer our constitutional question. Notice that in both Heart of Atlanta and Katzenbach, the question was not simply whether motels or restaurants affected interstate commerce, but, more precisely, whether the practice of racial discrimination by such businesses affected interstate commerce. The inquiry here, therefore, must focus on the particular activity being regulated, namely, the practice of age discrimination in employment. Does this practice, when engaged in by an industry affecting commerce, substantially affect interstate commerce? The answer to that question requires an economic assessment of the consequences of age discrimination. If one could reasonably conclude that such discrimination causes a decrease in spending by the protected group or has a "depressant effect" on the overall economy, particularly when engaged in by an industry affecting interstate commerce, then the ADEA is constitutional and can be applied to the business practices of the Best Seller. This is essentially the reasoning followed by the Court in Katzenbach. Moreover, given the generally deferential approach applied where, as here, the regulated activity is economic and commercial in nature, it is likely that the Court would uphold such a "presumed" determination by Congress even in the absence of specific findings.

Example 5-N The 2010 Affordable Care Act significantly expanded the federal Medicaid program under which federal funds are given to the states on the condition that they provide specified medical care to the needy. The earlier Medicaid program required coverage only for certain categories of needy individuals, with no mandatory coverage for most childless adults, and with flexibility as to the parents of needy families. Under the 2010 amendments, states by 2014 were required to expand their Medicaid programs to cover all individuals under the age of 65 whose income is below 133 percent of the federal poverty guideline. The federal government would initially pay 100 percent of the cost of covering these newly eligible individuals, with that percentage gradually dropping to 90 percent. A state that refuses to adopt the expansion will lose the funds associated with the expansion, as well as its existing Medicaid funds. Medicaid spending accounts for about 20 percent of the average state's total budget, and federal funds cover roughly 50 to 80 percent of this amount. States that decline to adopt the Medicaid expansion will thus lose federal funds that account for between 10 and 16 percent of their total state budget. Is this conditional spending program a valid exercise of Congress's spending power?

Under the first Dole factor, the question is whether the expanded coverage condition imposed on the receipt of federal funds was stated so clearly and unambiguously that a state accepting federal funds was aware of the consequences of that acceptance. When states signed onto the Medicaid program, they surely knew that Congress might from time to time amend the program. But the question here is whether the significant expansion effected by the 2010 act was something states could be expected to have anticipated when they originally agreed to participate in Medicaid. Here, a good argument can be made that the expansion is beyond what a state could reasonably have anticipated when it first signed on to the program. The expansion can be seen as creating an entirely new universal health care program, quite distinct from the original program that was limited to certain recognized categories of the needy. The fact that the Affordable Care Act created a separate funding provision to cover the costs of those made newly eligible further strengthens this argument. As to the second Dole factor, whether the condition imposed is related to the federal expenditure at stake, this hinges on whether we view the original Medicaid program and the Affordable Care Act expansion as involving different programs, or whether the latter is better characterized as simply a modification of the earlier program. If these are viewed as different programs for the reasons suggested above, then this factor is not met because the government would be using a state's failure to adopt the Affordable Care program as a reason to terminate its funding for the distinct and preexisting Medicaid program. Finally, a strong argument can be made that this is one of those rare instances when the federal government in its relations with the states has crossed the line between persuasion and coercion. The amount of money at stake here is substantial. In the Dole case, if South Dakota refused the federal invitation to raise the state's minimum driving age to 21, the state would lose only 5 percent of its federal highway funds, representing less than half of 1 percent of the state's budget. Here, by contrast, a nonparticipating state would lose 100 percent of its federal Medicaid funds. Depending on the wealth of the state, this would amount to anywhere from 10 to 16 percent of the total state budget. If this spending program were thus deemed to be penal or regulatory, it could be upheld only if Congress has the power to regulate the states in this manner. Such power does not exist, however, for the Court has held that under principles of federalism, Congress cannot compel the states (as opposed to merely giving them an incentive) to enforce a federal regulatory scheme. See § 5.6.

Example 5-J The Federal Disaster Relief Act provides federal money to communities and individuals who have suffered losses caused by natural disasters such as floods, earthquakes, and hurricanes. The relief is available without any need to show a connection to interstate commerce or to any other national concern. Is the act within the scope of the general welfare power?

Yes. Regardless of the purely "local" nature of the catastrophes such that they would very likely fall beyond the scope of Congress's regulatory powers, the presumed congressional judgment that these expenditures are for the general welfare of the nation will be upheld as being well within the discretion of Congress.

Example 5-R The Brady Handgun Violence Prevention Act (the Brady Act) regulates certain aspects of the sale of handguns. Among other things the act requires a five-day waiting period before a handgun dealer may transfer a handgun to a buyer. During that waiting period, the act requires the local "chief law enforcement officer" of the locality where the sale is to take place to: determine whether sale of the handgun would violate the law; perform a background check on the buyer; if the buyer is eligible to purchase the handgun, destroy the filing papers; and if the buyer is not eligible, provide a statement of reasons within 20 days. Does the Brady Act violate the constitutionally enforceable principle of federalism recognized by the Court in New York v. United States?

Yes. The Brady Act does precisely what the Court in New York v. United States says that Congress cannot do. The act commandeers states into enforcing a federal regulatory scheme by making local law enforcement officers the administrative agents of the federal government. Had the Brady Act simply offered participating states financial incentives to agree to enforce the provisions of the Brady Act, the constitutionally enforceable principle of federalism would not have been violated unless that offer amounted to coercion. See § 5.4.3. As long as the federal government does not engage in coercion, it may use the carrot of federal money to entice state cooperation in a federal regulatory scheme. Nor would the principle of federalism be violated if states had been given a choice between administering the Brady Act themselves or having a federal agency do so, assuming, of course, that the enactment of the Brady Act was otherwise within the power of Congress. As with monetary incentives, such cooperative federalism gives the state a genuine choice, including the option of doing nothing, and the constitutionally enforceable principle of federalism is therefore fully satisfied.

Example 5-Q The President, on her own independent authority, has entered into an executive agreement with the newly formed nation of Transylvia under which the President has agreed to recognize the sovereignty of Transylvia in exchange for Transylvia's agreement to grant the United States title to the assets of Transylvian bank accounts located in the United States. The President plans to use these funds to reimburse citizens of the United States who are creditors of Transylvia. May she do so?

Yes. This executive agreement falls squarely within the President's independent power to recognize foreign nations. U.S. Const. Art. II, § 3, cl. 3. See United States v. Pink, 315 U.S. 203 (1942); United States v. Belmont, 301 U.S. 324 (1937). The agreement is constitutional so long as it does not violate any constitutional limitations such as those found in the Bill of Rights.

Example 5-A As part of its effort to improve postal services in rural communities, Congress has delegated to the U.S. Postal Service an authority to exercise the power of eminent domain to procure land for new and expanded post office facilities in those communities. The Constitution grants Congress the power to "establish Post Offices and post Roads." It does not, however, mention anything about a power of eminent domain. Does the congressional action represent an appropriate exercise of constitutional power?

Yes. Under the Necessary and Proper Clause, the power of eminent domain may be exercised as a means to ensure that the power to establish post offices can be exercised completely and effectively.

Example 5-E Tommy grows marijuana on his farm in rural Virginia. He sells a small portion of his crop to neighbors and friends, and keeps the rest for himself. On the basis of these activities, Tommy has been charged with violating the Controlled Substances Act (CSA), a federal statute that makes the sale of marijuana a federal offense. Although the elements of the offense do not require any showing of a nexus with interstate commerce, the CSA includes the following congressional findings: "Controlled substances distributed locally usually have been transported in interstate commerce immediately before their distribution; local distribution and possession of controlled substances contribute to swelling the interstate traffic in such substances; and, federal regulation of the intrastate incidents of the traffic in controlled substances is essential to the effective control of the interstate incidents of such traffic." Consistent with the commerce power, may Tommy be convicted under the CSA for the local sale of marijuana?

Yes. Whether Tommy's own activity actually affects interstate commerce is irrelevant. It is enough that Congress has rationally concluded that the intrastate sale of marijuana is sufficiently related to the interstate traffic in marijuana, such that the regulation of intrastate traffic is necessary or appropriate to the effective regulation of interstate traffic. Given the findings made by Congress, it is quite likely that a court will find that Congress has made a rational policy judgment regarding the need to proscribe the intrastate sale of marijuana. In other words, the congressional judgment that there is a substantial relationship between the intrastate marijuana market and the interstate marijuana market is sufficiently rational to permit Congress to regulate the former to more effectively regulate the latter. See Perez v. United States, 402 U.S. 146 (1971) (applying similar reasoning to a purely local extortionate credit transaction).